Joseph L. Ulrich v. Leanne S. Pumroy, 88-LW-2549

Decision Date25 July 1988
Docket Number10694,88-LW-2549
PartiesJoseph L. ULRICH, Jr., Plaintiff-Appellee, v. Leanne S. PUMROY, Defendant-Appellant.
CourtOhio Court of Appeals

Alan J Statman, Ruppert, Bronson & Chicarelli Co., L.P.A., Franklin for plaintiff-appellee.

David C. Greer, Bieser, Greer & Landis, Dayton, for defendant-appellant.

OPINION

PER CURIAM:

The plaintiff, Joseph Ulrich, commenced this action against the defendant, Leanne Pumroy, claiming damages in the amount of $750,000.00 for personal injuries alleged to have been sustained in an accident which occurred on October 6, 1983. In his complaint, Mr. Ulrich alleged that his injuries were a direct and proximate result of Ms. Pumroy's negligence in failing to yield the right-of-way.

According to the evidence, Pumroy had proceeded in an easterly direction from Dahlia Drive into the left lane of northbound traffic on Route 741, at approximately 2:30 a.m on October 6, 1983, when she was struck on the left-rear portion of her Volkswagon by the right-rear portion of a Chrysler being operated by Ulrich, who had been proceeding in a northerly direction on Route 741.

At the conclusion of the trial, the jury rendered a verdict in the amount of $1,340,000.00, and found that Pumroy was eighty-three percent negligent and that Ulrich was seventeen percent negligent. Thereafter, the judgment in the amount of $1,149,550.00 (83%) in favor of Ulrich was entered in the Court of Common Pleas of Montgomery County. Subsequently, a motion for a new trial was overruled by the trial court, and from the order thereupon entered, Pumroy has perfected an appeal to this court.

The appellant has set forth five assignments of error, the first of which has been stated as follows:

"1.The trial court committed error prejudicial to the defendant in excluding from evidence properly authenticated hospital records showing that the plaintiff's blood alcohol level was at least .256 at the time of the accident."

When Ulrich swerved to the left in an attempt to avoid a collision with the Pumroy vehicle, he lost control, ran off the road, uprooted a tree, and came to rest against another tree. He was knocked unconscious in the accident, was hospitalized for nine weeks, and spent two years recuperating from his injuries. When Ulrich was removed to Kettering Memorial Hospital immediately after the accident, a hospital record was made which included a notation that his blood alcohol level was .256. At the trial, Pumroy attempted to admit the hospital records prepared at or about the time of the accident, but the trial court held that such records were not admissible.

In this regard, the record in this case shows, and the parties to the action apparently agree, that the defendant satisfied the procedural requirements of R.C. 2317.422, which permits the admission of hospital records in lieu of the testimony in open court of their custodian. Moreover, the records were apparently kept in the course of the regularly conducted business activity of the hospital. Furthermore, nothing appears to challenge either the source of the information provided by the toxicology report or the method used in the preparation of such report. See, Evid.R. 803(6).

When the proponent of hospital records satisfies the foundational requirements for their admission, as set forth in R.C. 2317.422, the burden of proving the untrustworthiness of such evidence is upon the party seeking the exclusion of the reports. And like any other evidence, the key to the admissibility of the toxicology report turned upon its reliability and trustworthiness. Here, the plaintiff presented no evidence to indicate a "lack of trustworthiness". Evid.R. 803(6). Or, as noted by the Supreme Court in Weis v. Weis, 147 Ohio St. 416, "such records are accepted as accurate and trustworthy, until inaccuracy is shown, upon faith in the routine by which and in the purpose for which they are made".

In the present case, Mr. Ulrich was admitted to Kettering Memorial Hospital a short time after the accident in a seriously injured and unconscious condition, and according to his own testimony, he had blacked out prior to his impact with the tree. Thereafter, at approximately 3:53 a.m., a blood sample was taken from him in the regular course of business, and from all indications, the information provided by the blood sample was trustworthy. Indeed, the blood sample, in the light of the existing circumstances, was important, if not indispensable, to the proper medical and/or surgical treatment of the patient. Hence, the only possible objection to the hospital report turned upon the issue of relevance. In other words, did such evidence have any tendency "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence". Evid.R. 401.

The evidence discloses that Mr. Ulrich had left an establishment known as Fridays only a few minutes before the collision where he had consumed five or six beers within two hours. He had also consumed two beers several hours earlier in the evening, and he testified that he was traveling at a speed of from forty-five to fifty-five miles per hour as he proceeded on State Route 741 toward the intersection of Dahlia Drive. Ulrich testified further that Pumroy pulled out in front of him and that he swerved left before clipping the back-left portion of her Volkswagon. He then felt a bump and blacked out.

According to the testimony of Pumroy, she dropped off a friend on Dahlia Drive and headed east toward the intersection of the street with State Route 741. According to her statement, she then stopped at the stop sign and saw the headlights of an approaching vehicle about one-half mile away as she pulled into the left northbound lane of the highway.

With a view to these facts, as related by the parties to the action, the jury was required to determine whether the defendant negligently caused the plaintiff's injuries and whether his own negligence, if any, barred or reduced his claim for damages.

For some reason, the jury sought specific information as to the blood test results, and the hospital report indicating that the plaintiff's blood contained a sufficient percentage by weight of alcohol to create a presumption that he was under the influence of an intoxicating beverage was reasonably relevant to the critical issues in this case. See, Evid.R. 401. Applicable here, therefore, is the well-supported excerpt from the text of 43 Ohio Jur.3d 260, Section 435, which provides as follows:

" * * * those portions of hospital records made in the regular course of business and pertaining to the business of hospitalization and recording observable acts, transactions, occurrences, or events incident to the treatment of a patient, are admissible, in the absence of privilege, as evidence of the facts therein recorded, insofar as such records are helpful to an understanding of the medical or surgical aspects of the case, and insofar as they are relevant to the issues involved, provided such records have been prepared, identified, and authenticated in the manner specified in the statute itself."

This court is not unmindful that a determination as to the admissibility of evidence is a matter which ordinarily rests within the sound discretion of the trial court, but after careful consideration and extensive research, we are nonetheless of the opinion that the exclusion of the hospital report, under the facts and circumstances of this case, constituted prejudicial error. Hence, the first assignment of error must be sustained.

The second assignment of error has been presented by the appellant as follows:

"2.The trial court committed error prejudicial to the defendant in admitting subjective, non-expert opinions on the ultimate issues for the jury."

This alleged error alludes to the testimony of an accident reconstruction expert who relied for his opinion upon the accident report of the investigating officer, the statements of witnesses, the depositions, various photographs, certain measurements, and his own visit to the scene, in order to establish the cause of the accident. The expert, Mr. Yordy, based his conclusions upon time and distance calculations, and after testifying as to various matters, he made the following statement:

"My opinion is...

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